Noori v Police - [2023] NZHC 3799

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-521

[2023] NZHC 3799

BETWEEN
PERS PUSHO NOORI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 December 2023

Appearances:

H Shim for the Appellant M Nash for the Respondent

Judgment:

4 December 2023

ORAL JUDGMENT OF BECROFT J

[As to appeal against conviction and sentence]

Solicitors/Counsel:
J Yi, Barrister, Auckland Meredith Connell, Auckland

NOORI v NEW ZEALAND POLICE [2023] NZHC 3799 [4 December 2023]

The appeal

[1] On 17 September 2022, the appellant, Pers Pusho Noori (Mr Noori), assaulted his stepfather outside Upland Liquor Spot on Remuera Road, Auckland.1

[2] Mr Noori saw his stepfather inside the liquor store and followed him, verbally abusing him. The stepfather left the store. As he did, Mr Noori took a swing at him, but missed. The stepfather then went back to his vehicle. Mr Noori followed him there and confronted him a second time. He gained access to the vehicle, grabbed his stepfather by his clothing and tried to drag him out from the front passenger side. He punched his stepfather once with a closed fist to the left cheek and kicked him to the left upper thigh.2

[3] After pleading guilty to a charge of common assault,3 Mr Noori applied for a discharge without conviction under s 106 of the Sentencing Act 2002.

[4] District Court Judge CM Ryan heard the application. She noted that Mr Noori, to his credit, had admitted that he had previously received a discharge without conviction in 2020 for assaulting his mother with intent to injure her. Now, on similar grounds, he was advancing another application, this time for an assault on his stepfather.4

[5] The Judge assessed the gravity of the offending as low.5 She rejected purported travel consequences as speculative and a little uncertain at this stage of his life and also largely arising because of his behaviour (which he would inevitably have to explain), rather than because of any conviction.6 Further, purported employment consequences were speculative.7 This left only general consequences that apply to all those in these circumstances convicted of an offence such as this.8 She found that

1      New Zealand Police v Noori [2023] NZDC 21244 at [3].
2 At [4].
3      Crimes Act 1961, s 196.
4 Above n 1, at [2].
5 At [51].
6 At [62].
7 At [63].
8      At [52] and ]64].

those consequences were not out of all proportion to the gravity of the offending in this case. Therefore, she dismissed the application.9

Grounds of appeal

[6] Mr Noori now appeals. He makes three arguments set out in Mr Shin’s very helpful and comprehensive submissions:

(a)The Judge erred by placing excessive weight on the gravity of offending. This is particularly in the light of the challenges in life he has faced to date and was experiencing at the time. Also, the evidence set out in the fresh affidavit of his stepfather, the victim, who is entirely supportive of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3799
Decision Date: 4 December 2023

CaseChat Overview and Summary

Pers Pusho Noori appealed against the District Court’s refusal to grant him a discharge without conviction under s 106 of the Sentencing Act 2002, following a guilty plea to a charge of common assault. The case involved an incident where Mr Noori assaulted his stepfather outside a liquor store in Auckland. The District Court Judge assessed the gravity of the offending as low and rejected the appellant's application for a discharge without conviction, noting the speculative nature of the consequences of conviction. Mr Noori argued that the Judge erred in placing excessive weight on the gravity of the offending, insufficient weight on the consequences of conviction, and misapplied the balancing test. The High Court found that the District Court Judge had appropriately assessed the gravity of the offence, considering both the nature of the assault and Mr Noori’s circumstances. The Court also found that the Judge correctly evaluated the consequences of conviction, which, while real and appreciable, were not out of all proportion to the gravity of the offending. The balancing test, as applied by the District Court, was considered appropriate and free of material error. The appeal was dismissed, and the decision of the District Court was upheld.

Orders